Excerpt:.....of new buildings-municipality's failure to pass order-owner can proceed to build-addition of septic tank-water-closet.; where a proper notice has been given under section 123 of the bombay municipal boroughs act, 1925, and the proposed building including the drains has been proceeded with properly under sub-section (5), it is not open to the municipality subsequently to require the drains to be removed under section 137 of the act.; the accused submitted to the ahmedabad borough municipality on august 11, 1934, the plan of a new building which he intended to construct, and as he received no reply from the municipality he began to construct his building. on january 6, 1936, he submitted to the municipality a completion plan of the building, and suggested addition of a drain and..........building which he was going to construct, but that plan did not refer to the present drain and septic tank to which objection is taken. that original plan was approved by the municipality. then on january 6, 1936, the accused sent a fresh plan to the municipality showing the drain and the septic tank, to which exception is now taken, in red. that plan is headed ' proposed drainage and septic tank of f. p. no. 670.' the magistrate says there was no application for leave to carry out the work, but there is such an application on the record. on march 18, 1936, the accused sent an application to the municipality with a further plan requesting the municipality to permit him to construct a septic tank and a water-closet. he then started to construct his new drainage in the month of april,.....

Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision made by the applicant against his conviction by the Stipendiary Magistrate, First Class, Ahmedabad, under Section 137 (b) of the Bombay Municipal Boroughs Act, 1925, the conviction having been upheld by the Additional Sessions Judge.

2. The case involves the consideration of Sections 123 and 137 of the Bombay Municipal Boroughs Act, 1925. Section 123 comes within Chapter IX under the sub-heading ' Powers to regulate buildings, etc' which is placed immediately in front of Section 119, and Sub-section (1) of Section 123 provides that before beginning to construct or alter any building the person intending so to construct or alter shall give to the Chief Officer notice thereof in writing and shall furnish to him at the same time, if required by a by-law or by special order to do so, a plan showing the matter specified in the section and all information required by the by-laws or demanded by the Chief Officer regarding, amongst other things, the intended situation and construction of the drains, sewers, privies, water-closets, and cesspools, if any, to be used in connection with the building. Then under Sub-section (2) the Chief Officer may either give permission for the proposed construction or impose conditions, and under Sub-section (4) he may make a provisional order for a period not exceeding a month that the intended work should not be proceeded with. Then under Sub-section (5) it is provided that a work proposed in a notice given under Sub-section (I) may be proceeded with in the manner specified in such notice in case the Chief Officer within one month from the receipt of the notice given under Sub-section (I) has neither passed orders under Sub-section (2) and served notice thereof, nor issued a provisional order under Sub-section (4). So that where a notice specifying the building sought to be constructed is given and the Chief Officer has not taken any steps within a month in relation thereto, the building owner can proceed with his proposed construction, and I think that is on the basis that the consent of the Chief Officer must in such circumstances be implied.

3. Section 137, under which the present conviction took place, comes within a group of sections commencing with Section 127 entitled ' Powers connected with drainage, etc.', and the section, so far as is material, provides that the standing committee may by written notice require that any sewer, drain, privy, water-closet, urinal, house-gully or cesspool on, any land within a Municipal borough, constructed, rebuilt or unstopped either without the consent or contrary to the orders, directions or general regulations or by-laws, of the municipality, or contrary to the provisions of any enactment in force at the time when it was so constructed, rebuilt or unstopped, shall be demolished, and the building owner is also liable to pay a fine not exceeding Rs. 25.

4. The learned Sessions Judge expressed the view that Section 123 was not concerned with the question of drainage because the later group of sections beginning with Section 127, and including Section 137, deals expressly with the subject of drainage, and therefore, he considered that where the standing committee required a drain to be demolished under Section 137, it would be no answer to say that it had been constructed under a notice given under Section 123 after the lapse of a month, no action having been taken by the Chief Officer. The learned Sessions Judge was of opinion that the provisions of Section 123 did not apply and that if the drain had been constructed without the consent of the Municipality, then a conviction could properly be recorded under Section 137. I am not able to agree with that view of the learned Sessions Judge because Section 123 does in terms deal with the drains and sewers of the proposed new building, and it would be impossible to supply an accurate plan of a proposed new building unless the drainage system (if there was to be any) was included. It seems to me impossible to hold that where a proper notice has been given under Section 123, and the proposed building including the drains has been proceeded with properly under Sub-section (5), nevertheless the Municipality can require the drains to be removed under Section 137. I think that in such cases the answer is that the consent of the Municipality has been obtained by implication having regard to the provisions of Section 123,' Sub-section (5). No doubt, there may be a good many cases which fall either under the provisions of Section 123 or under the provisions of Section 137, but primarily Section 137 is designed to give to the Municipality a power exercisable at any time merely by notice in writing to require the demolition of a drain constructed without proper consent or contrary to regulations, whereas the penalty under Section 123 for breach of that section is primarily a fine, and demolition can only be ordered after conviction has been obtained under Sub-section (7) (b).

5. Now, if that is the right construction of the two sections, the question here is whether on the facts a notice of the proposed new building and drainage system was given and no action taken by the Chief Officer within a month. What happened was that in 1934 the accused sent to the Municipality a plan and I gather, though the Magistrate does not say so in so many words, a notice as to the proposed building which he was going to construct, but that plan did not refer to the present drain and septic tank to which objection is taken. That original plan was approved by the Municipality. Then on January 6, 1936, the accused sent a fresh plan to the Municipality showing the drain and the septic tank, to which exception is now taken, in red. That plan is headed ' Proposed drainage and septic tank of F. P. No. 670.' The Magistrate says there was no application for leave to carry out the work, but there is such an application on the record. On March 18, 1936, the accused sent an application to the Municipality with a further plan requesting the Municipality to permit him to construct a septic tank and a water-closet. He then started to construct his new drainage in the month of April, 1936, that is to say, more than a month after he sent the plan in January but less than a month after he made the application of March 18.

6. Now, the lower Courts have both held that the sending of the plan in January, 1936 without any formal application for leave to build and any formal notice, does not amount to the giving of a notice under Sub-section (1) of Section 123, though the learned Additional Sessions Judge, as I have said, seems to consider that Section 123 is irrelevant and the case turns entirely on Section 137. In my opinion, the sending of the plan in January with the endorsement upon it saying that it was a plan as to the proposed drainage and septic tank does amount to the giving of notice to the Chief Officer as to the work proposed to be constructed, even apart from the letter to that effect which I find on the record. That plan was sent after the submission of the former plan, and I think the Municipality must have understood from it that it was proposed to make the alteration shown in that plan to the building and drainage shown in the earlier plan. There is nothing in Section 123 which requires that the notice should be in a document separate from the plan. I apprehend that the notice can be endorsed on the plan, and I think in the circumstances of this case the plan sent to the Municipality was sufficient notice underSub-section (1) of Section 123 apart from any covering letter asking for leave, and as no action was taken for a month, I think that the accused was entitled to proceed with his work under Sub-section (5). That being so, there was implied consent on the part of the Municipality which would prevent a conviction being recorded against him under Section 137.

7. In my judgment, therefore, the application must be allowed, the rule made absolute and the fine refunded.

Divatia, J.

8. I agree. Although I find a certain amount of difficulty in reconciling the provisions of Sections 137 and 123 of the Bombay Municipal Boroughs Act, I am of opinion that the facts of the present case come under Section 123. In 1934, the petitioner applied in the first instance for permission to erect a building and for that purpose sent a plan to the Municipality on August 11, 1934. Thereafter when the building was completed by the end of 1935, he sent, as required by Section 124 of the Act,i a completion plan to the Municipality, and also a plan of the proposed septic tank with the drainage which the petitioner wanted to add to the newly constructed building. Along with the plan he sent a letter in a printed form to the Municipality in which he stated that he was sending the completion plan and also a plan for the proposed tanki as well as the septic tank, and he specifically sought permission to construct the septic tank as proposed in the plan. That being so, this application, which was made on January 6, 1936, was really a supplementary application to the original application of 1934 and would fall under Section 123 of the Act. The present case would therefore be governed by Sub-section (5) of Section 123 and as the date of the application for constructing the septic tank is to be regarded as January 6, 1936, and not March 18, 1936, and the septic tank was constructed more than one month after the date of the first application, viz. January 6, 1936, to which the Municipality did not reply, the petitioner was justified in constructing the septic tank without waiting for any order from the Municipality. I, therefore, agree that the rule should be made absolute and the fine refunded.